Beverly Hill Bar Association–Trusts and Estates Section
Litigation Update (since June 17, 2003)


California Court of Appeal

Trusts and Estates
Harnedy v. Whitty (7/30/03) (First District, A099722) Beneficiary has standing to pursue claim resting on alleged breaches of trust by trustee against either the trustee directly, against trustee and third parties participating in or benefiting from breach of trust, or against third parties alone. Probate Code Sec. 17000(a), giving probate departments of superior courts “exclusive jurisdiction of proceedings concerning the internal affairs of trusts,” does not implicate fundamental subject matter jurisdiction, and claims of trustee breach of trust are not internal affairs within meaning of the statute.
Cite as 2003 SOS 4056
Full text http://www.metnews.com/sos.cgi?0703%2FA099722

Healthcare Law
Bragg v. Valdez (8/18/03) (Second District, B158819) Treating psychiatrist who, based on absence of insurance coverage, releases a patient involuntarily committed under Lanterman-Petris-Short Act as a danger to himself and others may be liable to patient and any person patient injures. Immunities for treating psychiatrists provided by Lanterman-Petris-Short Act are applicable only if psychiatrist acted in good faith in releasing patient based on personal observation and professional opinion patient did not constitute a danger to himself or others.
Cite as 2003 SOS 4540
Full text http://www.metnews.com/sos.cgi?0803%2FB158819

Professional Responsibility and Conduct
Moore v. Anderson Zeigler Disharoon Gallagher & Gray (6/20/03) (First District, A099643) Attorney has no duty to beneficiaries under a will to evaluate and ascertain the testamentary capacity of a client seeking to amend the will or to make a new will, nor, if such an evaluation is made, does attorney have any duty to beneficiaries to preserve evidence of that evaluation.
Cite as 2003 SOS 3243
Full text http://www.metnews.com/sos.cgi?0603%2FA099643

Torts
Palmer v. Zaklama (6/23/03)(Fifth District, F038533) Recordation of notice of lis pendens cannot be the subject of an abuse of process action, but may be subject of liability for slander of title. Absolute litigation privilege does not apply to recordation of lis pendens unless underlying action relates to right to title to, or possession of, realty; neither defendants' bankruptcy action nor suit by property managers--whom defendants alleged conspired with plaintiff purchasers to have defendants' property seized and sold by sheriff--was such an action. Admission that underlying civil rights action against purchasers, alleging they conspired with property managers and sheriff to conceal fact that they were acquiring property for benefit of property managers, was based on mere suspicion and unsupported by evidence was sufficient to establish lack-of-probable-cause element of malicious prosecution. Advice of counsel is not a defense to malicious prosecution unless defendant proves that underlying action was brought in good faith, and defendant's admission that underlying action was purely speculative was sufficient to support jury finding that it was not brought in good faith.
Cite as 2003 SOS 3282
Full text http://www.metnews.com/sos.cgi?0603%2FF038533

Ninth U.S. Circuit Court of Appeals

United States v. Alvarez-Farfan (8/7/03) (No. 0210324) Jury may determine similarity of handwriting without benefit of expert testimony, and it was abuse of discretion for trial judge to exclude handwriting evidence based on absence of such testimony.
Full text http://www.metnews.com/sos.cgi?0803%2F0210324

Effective August 18th, 2003 (continued):

To file first probate petition for decedent's estate, or first account of testamentary trustee,
estate under $250,000.....................................................................................................   $ 244.50
$250,000 to $499,999 ....................................................................................................   $ 316.00
$500,000 to $749,999 ....................................................................................................   $ 426.00
$750,000 to $999,999 ....................................................................................................   $ 591.00
$1,000,000 to $1,499,999 .............................................................................................. $1,141.00
$1,500,000 to $1,999,999 .............................................................................................. $2,241.00
$2,000,000 to $2,499,999 .............................................................................................. $2,791.00
$2,500,000 to $3,499,999 .............................................................................................. $3,891.00
$3,500,000 or greater, plus 0.2% of amount over, plus 10% surcharge ....................... $3,891.00+

To file other probate petition as first paper ........................................................................ $ 244.50
To file SUBSEQUENT probate petition by person other than original petitioner ............$ 244.50